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The Constitution in 2014: health care’s latest challenges

December 31, 2013 by Lyle Denniston


In this third article of a five-part series, Lyle Denniston examines the constitutional issues that still surround the new federal health care law.  Later articles will deal with same-sex marriage and elections.  Earlier articles dealt with the war on terrorism and with abortion.

healthcaregovNearly four years ago, when President Obama signed into law the most ambitious federal health care program in history, the year 2014 was anticipated to be its year of triumph.  That was when its most important fixture – the mandate that nearly all individuals must buy health insurance – was to take full effect, assuring that the major changes in medical coverage would be fully financed and health care would become nearly universal.

From the beginning, this Democratic program – it drew not one Republican vote in Congress – has had very energetic critics who were determined to do it in, especially in a constitutional sense.  It barely survived the opening challenge: the claim, rejected by the Supreme Court in 2012, that the individual mandate was beyond Congress’s powers..

But the unrelenting challenge goes on.  And, beyond that, the Affordable Care Act starts the year mired in deep doubt about whether it is a workable scheme, even if it should withstand all constitutional challenges.  The frustrations growing out of the flaws in the public’s electronic access to the new insurance sign-up arrangements, and out of the cancellation of many existing health policies, led Obama Administration officials into several rounds of tinkering that led many critics to suggest that the flaws were deeply embedded and could never be corrected.

Whether the sign-up process will be working by the time a March deadline arrives may depend, not on the constitutionality of the scheme, but simply upon whether its technology can be made to work.

Meanwhile, the courts will be busy with the new round of legal challenges.  Potentially the most significant of these is not technically a constitutional challenge; its outcome turns on the meaning of the language in the health care law.  But that has constitutional overtones, because it will require courts to decide whether to adopt a mode of interpretation that gives Congress some leeway in deciding what it meant.

That challenge involves the claim that the subsidies that are a critical facet of the new health care marketplaces, or “exchanges,” are simply not available in any state where the state government has refused to set up such a marketplace and the federal government has stepped in to create one on its own.

In other words, in the more than 30 states that have opted out of the exchange arrangement, the federal exchanges that were set up as an alternative could be – if this challenge suceeds -- left without any subsidies to bring in people who cannot afford insurance, but are not poor enough to qualify for the free Medicaid program, whose participation is necessary to secure the economics of the exchange system.

A federal judge is now pondering the argument that the Affordable Care Act mentions subsidies only when a state has created an insurance exchange, and the counter-argument that, whatever the law says specifically, Congress intended that the subsidies be available at all exchanges.  The very functioning of the crucial exchange system could depend on the outcome.

Separately, a federal appeals court is now pondering a seemingly long-shot challenge that the entire health care law is invalid because it includes a series of tax measures (including the one that seeks to ensure enforcement of the individual mandate to buy insurance), and thus it should have originated in the House of Representatives, not – as the challengers claim it did – in the Senate.

Given that the legal skirmishes over the law are so intensely fought by both sides, the subsidies issue and the origination clause claim appear likely to reach the Supreme Court, perhaps in 2014.

The Supreme Court, though, is already beginning to explore another constitutional challenge to a key part of the new law: the provision that seeks to assure free access to birth control and other pregnancy-related medical services for all female workers who are covered by a company health plan.  That provision has stirred up more than 100 lawsuits across the country, some by religious institutions, some by private businesses or their owners, arguing that the “contraceptive mandate” is a form of abortion promotion, and thus contradicts the beliefs of those who oppose abortion for religious reasons.

The Justices are scheduled to hold a hearing in March on the business side of that challenge.  That raises a constitutional question the court has never yet confronted: does a corporation have a religious point of view and a capacity to “exercise” that belief under the First Amendment’s Free Exercise Clause?

While a Supreme Court decision striking down the so-called “contraceptive mandate” would only nullify that provision, not the remainder of the health care law, that would be a constitutional breakthrough on the opportunity of corporations to challenge other kinds of laws that are claimed to contradict religious preferences.

Whatever the Justices decide on that controversy, their decision is likely to emerge in early summer, just when the 2014 congressional election campaign is beginning to heat up, with the future of the health care law front and center as a campaign issue.  A ruling against any part of the new law in that atmosphere would very likely intensify the effort to elect members of Congress who could be counted upon to vote, ultimately, to repeal the entire Affordable Care Act.   It was only a coincidence that the court stepped into a new dispute over the Act as a new election approached, but what it decides may well have a political impact.

Constitutionally, the year 2014 is one of deep uncertainty for President Obama’s most significant domestic policy initiative.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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